Weekly Roundup (October 30 – November 3, 2023)
Physician payment, coding, coverage, and quality reporting news highlights.
It was a busy week for the Biden Administration. Thousands of pages of payment rules, an Executive Order, another Surprise Billing rule, and a proposal to penalize clinicians for information blocking were released. Something for everyone! With Daylight Savings ending this weekend, you do have an extra hour to help you get through the news of this past week. As for myself, after this crazy week, I am looking forward to an extra hour of sleep. Now, on to this week’s update!
PAYMENT UPDATES AND OTHER REGULATIONS
3.4% Cut to Physician Payments Finalized for CY 2024. On November 2, 2023, the Centers for Medicare and Medicaid Services released the CY 2024 Medicare Physician Fee Schedule. While generally anticipated, stakeholders were disappointed that the CY 2024 Medicare Physician Conversion Factor (CF) was reduced to $32.74, a reduction from the 2023 CF of $33.89. As the cost of running a practice is rising, stakeholders are turning to Congress to avert this payment cut. It should be noted that a discussion draft circulated by the Senate Finance Committee on Thursday included a payment adjustment that would at least partially mitigate the current scheduled payment cut. The likelihood of this passing or any other payment fix being included in a year-end package is unclear.
Other highlights from the final rule include:
Implementation of G2211. This code describes complex patients and will be reported with E/M services, is generally supported by the primary care community. Due to its estimated increase in overall spending for the fee schedule, it has triggered budget neutrality adjustments and is a factor in the reduction of the CF.
Telehealth flexibilities extended through the end of CY 2024. Telehealth advocates had been lobbying for this extension as Congress and the Medicare agency and are likely pleased with the final rule. What was somewhat unexpected but likely welcomed by the provider community who had been lobbying against its implementation, CMS delayed a policy that would have required practitioners who render telehealth services from home to report their home address on enrollment and claims forms. Scheduled to be effective on January 1, 2024, the agency delayed this provision until Jan. 1, 2025, and solicits comments on the issue for future rulemaking.
Coding and Payment Policies to Advance Health Equity. Aligned with the Biden Administration’s commitment to advance health equity, a number of coding and payment policies were finalized. This includes payment for caregiving services, community health integration services (including care involving community health workers), principal illness navigation services, social determinants of health risk assessments, and expansion of dental care (for people with certain cancers).
No increase in Threshold to Avoid a Merit-based Incentive Payment System (MIPS) Negative Adjustment. The performance threshold will remain at 75 points for the 2024 performance period. CMS had proposed to increase the threshold to 82 points, but this was largely opposed by stakeholders. In particular, there was concern that this increase could disproportionately negatively impact small practices.
Other Payment Rules. The physician fee schedule was not the only payment rule released this week. The agency also released the CY 2024 Hospital Outpatient Prospective Payment System (OPPS)/Ambulatory Surgical Center (ASC) Final Rule, CY 2024 End-Stage Renal Disease Prospective Payment System, and the CY 24 Home Health Prospective Payment System Rate Update Final Rule.
Proposed Rule to Penalize Clinicians for Information Blocking. This proposed rule would penalize providers that conduct information blocking or intentionally interfere with the sharing of patient electronic health information, implementing a provision in the 21st Century Cures Act. The Office of the Inspector General (OIG) would determine if information blocking has occurred.
The Department of Health and Human Services (HHS) proposes publicly posting information about those penalized to promote transparency. The proposed rule would apply to those participating in the Medicare Promoting Interoperability Program (hospitals), MIPS, and the Medicare Shared Savings Program (MSSP). CMS seeks comments on whether it should expand the proposed rule's scope to other providers not covered in this rule.
In early reviews of this proposed rule, it has been noted that the penalty for MSSP participants, termination from ACO participation for at least one year, seems much steeper than the financial penalties proposed for hospitals and clinicians. Comments are due January 2, 2024.
Surprise Billing Proposed Rule Released. Following several judicial decisions and feedback from stakeholders, late last week, the Biden Administration released a proposed rule focused on operational issues to improve the shepherding of issues through the Independent Resolution Process (IDR). The IDR process was established to resolve situations where the medical provider and health plan cannot negotiate payments for out-of-network bills. Since its inception, the private sector and Congress have scrutinized and criticized the IDR process. This proposed rule addresses several issues, including early communication between payers and providers, an IDR registry, open negotiation, IDR eligibility, the administrative fee, batching, and extenuating circumstances. The rule has a 60-day comment period.
In Other News
Healthcare Implications of Artificial Intelligence (AI) Executive Order (EO). On October 30, President Biden signed an EO on AI. The wide-ranging EO is meant to set new standards for AI safety and security while offering guidance to help ensure algorithms and models are equitable, transparent, and trustworthy. It is anticipated that it will set the framework for future legislation.
The healthcare community has been struggling with the growing role of AI from understanding safety issues, valuation of AI services, and its impact on quality and equity. There have been reports of the use of AI by Medicare Advantage plans for preauthorization review and states using AI for enrollment issues related to their Medicaid plans.
This EO intends to set standards for AI in healthcare and other industries. The EO directs HHS to establish an AI task force within 90 days. The task force will provide guidance on AI use, safety, equity, privacy, maintenance and availability of documentation, engagement with state and local entities, and workplace satisfaction and efficiency. HHS is also tasked with establishing an AI safety program, developing a strategy for regulating AI/ML tools in drug development, identifying activities to understand better how nondiscrimination laws apply to AI technology, the use of automated systems or algorithms by states and local entities rendering public benefits, and strategies to determine quality in AI.
Following the release of the EO, the Office of Management and Budget released guidance for agencies on AI governance, innovation, and risk management.
An EO has limits and does not have the reach of legislation. To that end, Congress has also been addressing the issue of AI. On Thursday, Senators Jerry Moran (R-KS) and Mark Warner (D-VA) introduced legislation to establish guidelines for developing and using artificial intelligence. It has also been reported that Representative Ted Lieu (D-CA) plans to introduce companion legislation in the House. Finally, Senator Schumer (D-NY) has been working on introducing AI legislation and is hosting a series of AI Insight Forums.
We should expect activity to continue in this area.
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For more information and questions, please contact:
Sheila Madhani, MA, MPH
Madhani Healthcare Consulting, LLC
Email: smadhani@madhani-health.com
www.madhani-health.com
Tel: (202) 679-2977